ABDUL MAJID KHANZADA, J.- This First Rent Appeal under Section 21 of the Sind Rented Premises Ordinance, 1979 is directed against the order dated 30.9.1991 passed by the VIII Senior Civil Judge, South-Karachi in Rent Case No. 1942/88, whereby the eviction application filed by the appellant was dismissed.
2. The case of the appellant is that late Abdul Hameed the father of the respondent was her tenant since 1962 in the shop bearing No. G-l and G-6 (one unit) Makhanji Building, Wadhomal Odharam Road, Pan Mandi, Nanak Wada, Karachi and after the death of Abdul Hameed in 1975 the respondent continued tenancy of the said shop. It is further asserted by the appellant that recently a rent agreement was executed between the appellant and the respondent on 19.4.1988, whereby the respondent took the said shop with fittings and the fixtures for running a barbar shop and Hammam on payment of rent at the rate of Rs.110/- per day, exclusive of amenities and other charges which are payable by the respondent direct to the authorities concerned. The appellant was not willing to extend the tenure of the tenancy because of her personal need but on the respondent's instance and great persuasion the same extended. The appellant further alleged that the respondent is not regular in payment of rent and have failed to pay rent from 1.8.1988 and till filing of the ejectment application he was in arrears of 144 days' rent. The appellant also asserted that she needs the shop in question for the personal bona fide use of her sons Muhammad Khalique and Muhammad Taufeeq.
3. The respondent filed his written statement in denial of the appellant's claim in the said ejectment proceedings stating therein that the case does not come within the purview of the Sind Rented Premises Ordinance, 1979 as such the present ejectment application is not maintainable. The father of the respondent was' occupying the demised shop against the payment of daily charges since 1975 he is in occupation of the same and has been paying daily charges as per terms of the Contract-Agreement executed between the parties from time to time. In prder to bring the case within the purview of Sind Rented Premises Ordinance, 1979, the appellant's husband got a rent agreement signed form him on 19.4.1988. Regarding default in payment of rent, the case of the respondent is that in the year 1975 the rate of rent was Rs.18/- per month and every year, on the threat of ejectment of the respondent, the rent was enhanced in the Contract agreements. He also asserted that in August, 1988 the son of the landlady named Muhammad Taufique received Rs.500/- from his towards rent for August, 1988. His further case is that when no body came to him to collect the rent, he went and tendered the same to the appellant who refused to accept, and demanded enhancement as such he tendered the rent through money orders which was also refused, hence he deposited the same in court in Misc. Rent Case No. 1845/88. In reply to the plea of personal need of the sons of the appellant, he stated that plea is not bona fide. He asserted that appellant's attorney/husband is in possession of a shop, his son Khalique is in Saudi Arabia while son Taufique is still a student.
4. The learned Rent Controller considered the case on the following points, after recording the evidence of parties:-
(1) Whether the applicant and opponent were executing the contract agreements till 1988 and thereafter applicant executed tenancy agreement with the opponent, with the consent of the opponent and application is maintainable?
(2) Whether the opponent has committed wilful default in payment of rent?
(3) Whether the applicant requires the premises for her personal bonafide use in good faith?
(4) what should the order be?"
5. The Appellant/Landlady examined her husband/attorney Muhammad Siddique, her son Muhammad Taufique, while Respondent/Tenant examined himself and witness Haji Ahmed, in support of their respective cases.
6. The learned Rent Controller, on the basis of the evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties decided all the points against the Appellant/landlady and thereby dismissed the ejectment application, against which the Appellant has preferred this appeal on the grounds mentioned in the memo of appeal.
7. I have heard Mr. Munib Ahmad Khan Advocate for the petitioner and Mr. Amir Malik Advocate for the Respondent and with their assistance have gone through the evidence produced by the parties in support of their case.
8. Point No. (1) is decided by the Rent Controller against the Appellant/landlady and thereby held that the ejectment application is not maintainable u/s. 5 of the S.R.P. Ord: 1979.1 do not agree with the finding of the learned Rent Controller for the simple reason that prior to the filing of the above ejectment proceedings by the Appellant against Respondent, the Respondent had himself subjected to the jurisdiction of the Rent Controller by filing Misc. Rent Case u/s 10 of the S.R.P. Ord: 1979 and more over he has also admitted the execution of the Rent Agreement, as such the Respondent/tenant can not be allowed to blow hot and cold at one time. It is therefore, held that the provisions of the S.R.P. Ord: 79 do apply in the present case and the tenancy between the parties is governed by the S.R.P. Ord. 1979, hence the ejectment application filed by the appellant is maintainable in law.
9. As regards point No. (2) it is admitted position that the perusal of the Rent Agreement and the evidence adduced by the parties it is established that there has been no regular mode of payment of rent. The tenancy is written one but no date or time is fixed in the rent agreement for payment of rent, as such the rent becomes payable in accordance with S.10(l) of the S.R.P. Ord: 79, which reads as under: - "S. 10(l).....The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due".
10. Since no date is mutually fixed by the parties in the rent agreement, it is not possible to determine as to when the default in committed. In order to calculate the default, the provisions of S. 15(2) (ii) of the S.R.P. Ord. 1979 be kept in mind which reads as under:- "S. 15(2)(ii)..... The tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of such agreement, within sixty days after the rent has become due for payment".
11. It is an admitted position that the tenant/Respondent sent the rent for the month of August 1988 through money order dated 4.10.1988, and thereafter repeated in the same manner on 8.11.1988, which were refused and then on 14.12.88 deposited the rent due in the Misc. Rent Case under the orders of the Rent Controller.
12. The Rent for the month of August 1988 becomes due on 1.9.1988, and by adding the grace period of 60 days as provided by S. 15(2) (ii) of the S.R.P. Ord: 1979, the tenant/Respondent could have tendered/sent the rent to, the landlady upto 1.11.1988, but he tendered the rent for August, 88 by money order on 4.10.1988, as such he has not committed any default in payment of rent. The finding of the Rent Controller on the point of default does not call for interference and is maintained.
13. So far point No. (3) the case of the landlady is that she needs the premises for the personal bonafide use of her two sons namely Khalique and Taufique. Khalique admittedly was in Saudi Arabia as admitted in cross examination by the Attorney of the landlady as well as by her son Taoufique while Taoufique is student. It is worth to note that Muhammad Siddique, the Attorney and the husband of the landlady/Appellant in his cross examination by stating that "Actually I need this shop for my personal bonafide use in good faith presently" has completely damaged the case of the Appellant/landlady on the plea of personal need. This statement of her attorney is not in consonance with the pleadings in the ejectment application. It is settled law that the landlord has to prove that the premises are required by him in good faith. Mere wish, convenience, whim or fancy of landlord would not be enough to show that landlord" requires the premises in good faith".
Since the need in the pleadings and the statements of the appellant is changed i.e., from sons to husband, the good faith and the bona fide is lacking. The other aspect of the case which shows that the landlady by her conduct in the past has proved to be greedy and not needy, as every time, she enhanced the rent at the time of execution of the contract agreements. The Rent Controller has rightly and very fairly turned down the plea of personal bona fide need. I am also not satisfied with the plea of personal bona fide need advanced by the landlady for the ejectment of the tenant/respondent, hence the finding of the Rent Controller is not disturbed.
In view of the above circumstances, I have no option but to dismiss the appeal and maintain the order passed by the Rent Controller, with no order as to costs.